United States District Court, D. Kansas
MEMORANDUM AND ORDER
TERESA J. JAMES, District Judge.
In this wrongful death action, Plaintiff seeks to recover damages arising from an incident in which her minor son was struck and killed by a Union Pacific train traveling through Russell, Kansas, on March 22, 2012. Currently pending before the Court is Plaintiff's Motion to Compel (ECF No. 36). Plaintiff requests an order, pursuant to Fed.R.Civ.P. 37, compelling Defendant Union Pacific Railroad Company to produce the medical files of the three train crew employees operating the train. As set forth below, the motion is granted in part and denied in part.
I. Procedural History
Plaintiff filed her Motion to Compel on May 7, 2014. She sought an order compelling Defendant to produce documents and tangible things responsive to several requests for production and finding that Defendant waived any claim of attorney-client privilege or work product by failing to produce a privilege log. In response, Defendant filed its Motion to Strike Plaintiff's Motion to Compel or, in the Alternative, Motion to Stay Deadline to Respond to that Motion (ECF No. 39). Defendant requested that the Court strike Plaintiff's Motion to Compel on the grounds that Plaintiff failed to confer concerning the matter in dispute prior to filing her motion as required by D. Kan. Rule 37.2, and because the motion was untimely under D. Kan. Rule 37.1(b). On June 19, 2014, the Court denied Defendant's motion to strike, but gave the parties additional time to confer about the issues raised in Plaintiff's motion to compel and extended Defendant's deadline for responding to the motion.
Defendant filed its response (ECF No. 57) on July 21, 2014. Plaintiff filed her reply (ECF No. 61) on August 11, 2014. The Court is now ready to rule on the remaining disputes at issue in Plaintiff's motion to compel.
II. Remaining Discovery Issue
Plaintiff states in her reply that she withdraws the portion of her motion to compel regarding waiver of attorney-client privilege, noting that Defendant produced a privilege log on July 15, 2014. She acknowledges the sole remaining issue before the Court is whether Defendant must produce the train crew's medical files in Defendant's custody and control that it maintains on the employees allegedly responsible for the train collision, as sought in Plaintiff's First Request for Production No. 3.
On February 2, 2014, Plaintiff served her First Request for Production No. 3 requesting that Defendant produce the following:
All documents which record, reflect, or otherwise evidence, in whole or in part, the medical file of the train crew kept by the Defendant and the Defendant's chief medical officer or surgeon in the ordinary course of the Defendant's business, relating to train crew's health and physical condition during their tenure of employment with the Defendant.
On March 21, 2014, Defendant served its response objecting to Request No. 3 on the grounds that it is facially overly broad and unduly burdensome, seeks private and confidential information concerning Defendant's employees, seeks documents protected by the attorney/client and work product privileges, and seeks documents that are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Defendant further objected to the extent the Request requires Defendant to violate the Health Portability and Accountability Act ("HIPAA") or other medical privacy laws.
A. Plaintiff's Burden with Regard to Defendant's Objections
As an initial matter, Defendant argues that Plaintiff has failed to bring "into play" Defendant's objections-that the discovery requests are overly broad, unduly burdensome, and not reasonably calculated to lead to admissible evidence-by Plaintiff's failure to specifically address each objection in her motion to compel. Plaintiff stated in her motion that because Defendant asserted the same boilerplate objection to most of her thirty-five requests for production, she was unsure of Defendant's position on a number of them. In her motion, she asked the Court to overrule the objections unless Defendant provided substantive responses to support these boilerplate objections. Plaintiff further stated in her motion that "because Defendant cannot rely solely on boilerplate objections and Defendant has not bothered to respond or confer with Plaintiff about this dispute, [she] will not waste the Court's time by responding to Defendant's overbroad, unduly burdensome, not reasonably calculated to lead to admissible evidence' type objections here."
Defendant argues that Plaintiff's failure to specifically or adequately address the actual substance or merit of each of the objections that Defendant lodged to Plaintiff's discovery requests in her motion to compel means that she has failed to bring these objections "into play." Thus, according to Defendant, its objections are not ripe for consideration and should stand. Defendant relies upon a footnote in the 2004 opinion, Sonnino v. University of Kansas Hospital Authority.  In Sonnino, the court, disagreeing with Cotracom Commodity Trading Co. v. Seaboard Corp.,  set out that "the party filing the motion to compel has the initial burden of addressing each boilerplate objection in its motion to compel" and that failure to address the objection in the motion to compel relieves the objecting party from having to reassert it and the objection stands. In Sonnino, Magistrate Judge Waxse commented:
The Court wishes to emphasize that the party filing the motion to compel has the initial burden of addressing each boilerplate objection in its motion to compel. By doing so, that brings the objection "into play" and places the burden on the objecting party to support its objections. If the moving party fails to address an objection in its motion to compel, the objecting party need not raise it, and the objection will stand. To the extent Cotracom may be construed to relieve the moving ...